Where Are The Criminals?

By |July 3, 2011

As Californians gear up for a likely 2012 referendum on the state's controversial Three Strikes law, Sacramento is finding fewer offenders to prosecute under the measure.

Fifteen years after passage of the state’s landmark three-strikes sentencing law, prosecutors in Sacramento and throughout California have become far more selective in applying the full force of the statute, reducing the number of life prison terms being sought for third strikers to a relative trickle.

While it used to obtain the maximum sentences anywhere from 50 to nearly 100 times a year, the Sacramento DA’s office now asks for life terms for third strikers fewer than 20 times a year, according to the state corrections department.

The office obtained 16 such sentences in 2010 compared to a high of 94 in 1996.

The trend bears out from Del Norte to Imperial counties. District attorneys across the state used to collectively pack off criminals on maximum three-strikes terms by the hundreds?more than 1,700 in 1996 alone.

In the last three years, the numbers have dropped to well short of 200 annually. California prisons housed 8,727 three-strike lifers as of Dec. 31.

Explanations for the decrease vary. One factor, said legal experts, is the 1996 California Supreme Court decision that gave judges a say in three-strikes sentencing.

'Supply-Side Sentencing'

They also point to a basic supply-side issue: voters and lawmakers have approved a collection of tough sentencing laws that have depleted the pool of eligible offenders earlier in their criminal careers, taking them off the streets before they qualify for 25-to-life terms under the three-strikes statute.

Sacramento prosecutors say they’ve simply gained a better sense of which offenders truly deserve the harshest measure of the law.

“Have we evolved over time? Yes,” said Sacramento County District Attorney Jan Scully, whose 17-year tenure in office closely tracks the history of California’s three-strikes law.

But she also believes there just aren’t as many people to sentence anymore, noting Sacramento County has imprisoned 557 offenders on 25-to-life terms since the law went into effect.

“Not just in Sacramento but across the state, we’ve put away people on three strikes and they aren’t now in our communities,” Scully said.

Passed by the California legislature and overwhelmingly approved by voters in 1994, the three-strikes law can be used to impose 25 (years)-to-life prison terms on repeat serious and violent offenders if they pick up a third felony, no matter how minor.

It also doubles prison terms for new offenders with single past convictions for serious or violent felonies.

Exercising Discretion

Prosecutors have always had discretion under the law to reduce potential life terms to lesser sentences, but many didn’t exercise it. Los Angeles County prosecutors, in particular, refrained from “striking strikes,” or dismissing prior serious or violent convictions for the purpose of lowering prison terms.

The approach changed when Steve Cooley was elected Los Angeles district attorney in 2000.

ED NOTE: Click here to read Three Strikes Fellow Marisa Lagos’ San Francisco Chronicle story on why some in California think “it’s time to change the law.”

Elected largely on a platform of refining the law’s application, Cooley took the lead in putting a new policy in place. He reserved the heavier sentences for defendants with serious or violent third strikes, but built in exceptions to target offenders with horrific pasts even if their latest charge wasn’t so serious.

Cooley said over-application of the law by some California prosecutors?hitting people for third strikes for minor felonies such as drug possession and pizza theft?prompted a public backlash. A 2004 statewide ballot measure that would have dumped three-strikes altogether came within three percentage points of winning.

“If you have a good law, and you abuse it, you will predictably lose it,” Cooley said at a recent symposium on the three-strikes law in Los Angeles. “If somebody has a rock (of cocaine) in his sock, you give him 25 to life? Give me a break.”

In an interview, Cooley said that Proposition 66, the 2004 initiative, “scared the bejesus out of everyone.”

In its aftermath, prosecutors developed policies “to make sure we’re not very disparate in our handling of these cases,” Cooley said.

Sacramento’s written policy on three-strikes dates to the late 1990s. Assistant Chief Deputy District Attorney Steve Grippi oversees it as a one-man committee of sorts who makes the call on just about all of the county’s three-strikes cases?whether to seek the maximum term or to dismiss a strike and go easier.

In Sacramento, all qualifying three-strikes cases are filed as such. The policy says strikes can be dismissed if a sentence “is disproportionate and therefore unjust based on the circumstances of the current offense and the background of the defendant.”

According to a review of the roughly 90 three-strikes cases pending in Sacramento in May, prosecutors are dismissing strikes in more than 40 percent of the cases relatively early in the process.

The nature of the new offense, the pattern of old convictions, whether earlier convictions involved actual violence, the defendant’s weapons history and whether drug addiction or mental illness come into play?all are factors that go into the decision.

“We look at every single strikes case individually,” Grippi said.

Although it’s the D.A.’s call, Grippi said prosecutors usually talk to the defense lawyer and judge before making the final decision on whether to pursue a case full throttle.

Big Changes

Paul Irish, a hard-knocking Sacramento defense lawyer who is at the downtown courthouse almost every day working heavy felonies, said he has seen big changes over the years.

“I think they just made their own unilateral decisions 15 years ago,” Irish said.

One of Irish’s clients, Garren Lamarr Bookman, is lined up to catch a break. With two prior robbery convictions, Bookman would have been a cinch for a life term 15 years ago if convicted on his new charges of cocaine possession and drunken driving. But prosecutors have dismissed one of his prior strikes and offered him eight years.

“They’re giving a lot of consideration to the input the defense is giving,” Irish said.

Sometimes, judges dial down life terms on their own.

Over the prosecutor’s objection, Sacramento Superior Court Judge Richard K. Sueyoshi recently removed a prior strike from the D.A.’s complaint on defendant David C. Boult, convicted of being an ex-con with a gun. Instead of 25-to-life, Boult got 10 years and four months.

Sueyoshi’s action once would have have been impossible. The three-strikes law initially only allowed prosecutors to dismiss strikes. But the state Supreme Court, in a 1996 decision, gave judges the authority to do it on their own.

Even with discretionary authority returned to the judges and prosecutors exercising a softer approach, there are plenty of critics who still think the California statute is unduly harsh and applied unevenly in different parts of the state.

“You still have some district attorneys out there who are still using it to capture aging felons on relatively minor third felonies,” said McGeorge School of Law professor Michael Vitiello.

In addition, Vitiello said, the prisons house thousands of offenders who are doing 25-to-life sentences whose cases may not have triggered that term today.

Vitiello said the state needs a “broad sentencing scheme” overseen by an appointed commission that would review the state’s entire sentencing structure in order to reserve limited prison space for the most dangerous offenders.

For their part, law-and-order hardliners have continued to push for?and win?tough sentencing measures. Among the stiffest?one they say may now overshadow three-strikes?is the 1998 “10-20-Life” statute.

The law increases prison terms to 10 years on defendants who pull out a gun during a crime, 20 years if they shoot it and a 25-to-life they hit and seriously injure anybody.

Grippi thinks the measure is a major reason why fewer offenders are getting swept up by three-strikes.

“In the old days, if somebody committed a crime with a gun, they might be out in two, three or four years,” Grippi said. “Those people aren’t out of custody now because they’re getting sentenced harshly.”

The law was authored by Fresno photographer Mike Reynolds, who also drew up the three-strikes initiative.

Reynolds became one of the state’s most prominent anti-crime activists after his daughter was murdered by a career criminal. He estimates that as many as 36,000 California convicts have had their sentences enhanced by 10-20-Life.

“It makes three-strikes look like a piker,” Reynolds said.

ED NOTE: For more stories on California's law and the upcoming referendum, please click here.

Andy Furillo is a reporter for The Sacramento Bee. He was a Reporting Fellow at the John Jay Center on Media, Crime and Justice Symposium on the Three Strikes Law held in Los Angeles May 1-2, 2011. This story appeared today in The Bee. Andy welcomes comments from readers.

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